Judgment:
ORDER
M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 10-9-2001 passed by the Civil Judge (Jr. Division), Palwal dismissing the application of the plaintiff-petitioner filed under Order 23, Rule 1 of the Code for withdrawing the suit with liberty to file fresh one on the same cause of action. The application has been dismissed on the ground that the suit of the plaintiff-petitioner was not likely to fail on account of any formal defect and, therefore, on the same cause of action he cannot be allowed to institute a fresh suit.
2. Brief facts of the case art; that the plaintiff-petitioner has filed Civil Suit No. 35 on 4-1-1997 seeking a declaration and permanent injunction as a consequential relief in respect of the properly in dispute. When the reply to the suit was filed by the defendant-respondents, an application was filed under Order 23, Rule 1 of the Code stating therein that the plea with regard to misrepresentation and fraud by inadvertence could not be taken which is necessary for deciding the controversy before the Court. The detail particulars of misrepresentation and fraud were also sought to be pleaded by filing the new suit. The application has been dismissed by the Civil Judge by recording the following order :--
'The present suit has been filed by plaintiff for declaration and permanent injunction stating that clue to the oversight of clerical mistake on the part of revenue staff, the plot in dispute was included in the Khatoni Istemal of father of defendants and under the guise of wrong entries, defendants are bent upon to interfere into the peaceful possession of plaintiff. Now plaintiff in the present application has stated that the wrong entry in the revenue record as stated by him are not only because of some mistake or oversight of the consolidation staff due to similarity of names of the predecessors of the plaintiff and the defendants but also because of the fraud and the misrepresentation played by the defendants and their predecessor-in-interest upon the consolidation and revenue authorities and the predecessors in interest of the plaintiff. As per plaintiff/applicant, the said fraud and misrepresentation and particulars thereof could not be given in the plaint due to inadvertance and the same are necessary as per law. It is stated that the same is a formal defect with which suit of the plaintiff will fail. Hence, plaintiff/applicant wants to withdraw the present suit with the permission to file a fresh suit.
Defendants/respondents have stated that Khasra No. 517 has been used by plaintiff and his father after the order of Addl. Director of Consolidation and Khasra No. 806 is being used by plaintiff and their predecessors. The allegations of fraud and misrepresentation are considered as baseless. Plaintiff has alleged that Khasra No. 806 (1-1) was allotted to Chokh Ram and Ghanshyam and after their death, plaintiff has been using the said Khasra number. As per plaintiff, the name of father of defendants over the plot in dispute has been recorded by clerical mistake on the part of revenue staff engaged in consolidation proceedings and the same are liable to be corrected and in , the present application plaintiffs have alleged such entries in the name of father of defendant, rather, due to fraud and misrepresentation played by defendants and their predecessors-in-interest on consolidation and revenue authorities and predecessors-in-interest of plaintiff. Plaintiff has stated that due to inadvertence plea of fraud and misrepresentation has not been taken in the plaint. In case of additional plea, the same can be taken by any part by seeking the amendment in the plaint. There is no reason that suit of the plaintiff is likely to fail as there is no formal defect in the plaint. Plaintiff cannot be allowed to file their suit on the same cause of action. There is no ground to allow the present application. Hence, the same stands dismissed.'
3. Mr. Rameshwar Malik, learned counsel for the plaintiff-petitioner has placed reliance on the provisions of Clause (b) of Sub-rule (3) of Rule 1 of Order 23 of the Code and argued that the learned Civil Judge has failed to examine his case in the light of aforementioned provisions which provide that if there are sufficient grounds for allowing the plaintiff-petitioner to institute a fresh suit on the same subject-matter or on part of a claim made, then the Court may as it thinks fit grant the permission to withdraw the suit. The learned counsel has pointed out that the application of the plaintiff-petitioner was considered only in the light of Clause (a) of Sub-rule (3) of Rule 1 of Order 23 of the Code with the result that the consideration is confined as to whether there was any formal defect and as to whether the suit should fail on account of such a defect. Making submissions on merits, the learned counsel has argued that no prejudice is likely to be caused to the defendant-respondents and in support of his submission, he has placed reliance in the case of K. S. Bhoopathy v. Kokila, 2000 (2) Pun LJ 181 : (AIR 2000 SC 2132).
4. Mr. B.S. Tewatia, learned counsel for the defendant-respondents opposed the contention raised by learned counsel for the plaintiff-petitioner and has brought to my notice the order dated 25-8-1964 passed by the Additional Director, C/H., Punjab, Rohtak showing that Khasra No. 806 was being used by the plaintiff-petitioner which in fact has been allotted to Chokh Ram, the father of the defendant-respondents. Ac-cording to the learned counsel, the entries in the record are favourable to the defendant-respondents. He has further submitted that the plea of misrepresentation and fraud was not set up by the plaintiff-petitioner in the original plaint (suit) filed by him.
5. After hearing learned counsel for the parties and perusing the impugned order as well as the other material on record, I am of the considered opinion that this petition deserves to be allowed because the name of the father of the plaintiff-petitioner as well as defendant-respondents is the same, namely, Chokh Ram and on account of either some error or deliberate attempt on the part of defendant-respondents, the dispute has arisen with regard to the suit property. In the suit filed by the plaintiff-petitioner such a plea could not be set up and the Civil Judge has failed to exercise jurisdiction vested in him by considering the plea under Clause (b) of Sub-rule (3) of Rule 1 of Order 23 of the Code. This aspect has been considered by the Supreme Court in K.S. Bhoopathy's case (AIR 2000 SC 2132) (supra) where two alternatives as contemplated by Sub-rule (3) of Rule 1 of Order 23 of the Code have been discussed. It has been emphasised that the Court must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. Their Lordships have interpreted Order 23, Rule 1 of the Code by observing as under :--
'The provision in Order 23, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore, on principle an application by a plaintiff under Sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under Sub-rule (1). In the former it is actually a prayer for concession from the , Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in Sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of Sub-rule (3) in which two alternatives are provided; one where the Court is satisfied that a suit must fail by reason of some formal defect, arid the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of Sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23, Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a ease would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean state. It may also result in the contesting defendants losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order 23, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting withdrawal of suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases.'
6. The aforementioned principle would require to find out the sufficiency of reasons for permitting the withdrawal of the suit and for allowing filing of the fresh one on the same cause of action. In the instant case, the names of father of both the parties are the same and the plaintiff-petitioner was not able to set up the plea of misrepresentation or fraud allegedly resulting into misuse of the land comprised in Khasra No. 806 by the defendant-respondents. Moreover, the proceedings are at initial stage and even issues have not been framed. It would be appropriate to conclude that the grant of permission for withdrawal of the suit with liberty to file fresh one would become increasingly difficult depending upon the stage of the proceedings. In appeal, such a request has to be viewed by keeping in view the settled rights of the parties and the wastage of public time spent by the Courts. Therefore, in the facts and circumstances of the case, I am of the considered view that the application filed by the plaintiff-petitioner deserves to be allowed and he is entitled to set up the case that there is some misrepresentation or fraud resulting into misuse of the land comprised in Khasra No. 806 by the defendant-respondents.
7. In view of the above, the instant petition is allowed. The order dated 10-9-2001 passed by the Civil Judge, Palwal is set aside and the civil suit filed by the plaintiff-petitioner is permitted to be withdrawn with liberty to file fresh one on the same cause of action.